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Poland

Author: Magdalena Tulibacka

I. Overview

Poland is a former socialist state which has experienced a very significant overhaul of its civil law and civil procedure over the past 25 years . Poland is now back to its roots as a civil law system. Traditionally, litigation has been an individual's path to justice and collective actions were not known. The Code of Civil Procedure of 1964 established a possibility of joinder of parties, albeit under very limited conditions. This is referred to as co-participation and is not a collective action mechanism but rather a case management mechanism for a number of separate cases. Further, following the accession to the European Union in 2004, Poland implemented EU laws concerning consumer protection, one of which (the Injunctions Directive) contains a type of collective procedure. It is, however, a purely injunction procedure and does not lead to compensation.

In 2009, Poland introduced a class actions procedure (the Act on Class Actions of December 17th, 2009 came into force on July 19th, 2010). It was meant to be a generic mechanism covering all types of liability, but was amended in the Senate (the upper house of the Polish Parliament) to apply only to consumer law, product liability and tort liability (except for claims for the protection of personal interests). This part of the Report focuses only on the Class Actions Act, and not on co-participation or injunctions.

IMPORTANT: the Polish Class Actions Act is not precisely general (generic) in scope, but neither is it sectoral as it covers consumer law, product liability law, and applies to tort claims across sectors. Thus, the author decided to place it within the 'general' part of the Report.

The Act on Class Actions of December 17th, 2009 established an opt-in procedure which allows a class action to be brought only by a class member or by a regional consumer ombudsman (public body). As mentioned above, the Act has a limited scope of application (only consumer protection, tort and product liability claims are allowed, with the exclusion of claims for the protection of personal interests).

Notwithstanding these restrictions, the Act does not have many detailed requirements as to certification. The requirements are as follows: the action must be brought in the name of at least 10 people, with claims of the same kind, and with the same or similar factual basis. The Act includes a very interesting requirement, which is indeed unique among other class action models. If a suit concerns a monetary claim, a class action is possible only if the amount claimed by each class member has been made equal with the others (this may be done in sub-classes of at least two people). On the other hand, in cases concerning monetary claims, the claim may be limited to a mere declaratory relief, and then followed by individual lawsuits by class members.

As mentioned above, the Polish class action is an opt-in mechanism. After certification, potential class members can join the class within the time limit set by the court. A final judgment concluding the class action then binds all class members .

The Act does not allow class representatives to obtain legal aid (which in Poland consists of an ex officio lawyer and a waiver of court fees). It also sets the court fee for lodging the case at 2% of the total value of the claims, which is lower than in most other types of litigation. In cases where a regional consumer ombudsman is a class representative, the court fee is waived. The Act provides a possibility for the defendant to ask for security for costs, which can be secured at the court's discretion and can reach up to 20% of the value of the claim .

In contrast to the general rules of Polish civil procedure and lawyers' ethics, the Act allows lawyers to agree to a contingency fee limited to 20% of the amount recovered for the class. Indeed, legal representation is a requirement - both for a class representative who is a class member and for a regional consumer ombudsman.

In many respects the Act does not regulate the details of the proceedings - general civil procedure rules contained in the Code of Civil Procedure of 1964 apply. These are rules concerning deliveries, preclusions, expert witnesses and other evidence, or execution of judgments. Further, one of the general principles of civil procedure is 'loser pays', albeit modified to include a tariff for lawyers' fees and some judicial discretion for awarding a percentage or even no costs to winner if the loser's circumstances call for it or if the winner behaved unreasonably during the proceedings.

As regards the position of foreigners in Polish class actions, the Act does not expressly regulate this issue, and thus the general provisions of the Code of Civil Procedure and private international law apply. Polish law accepts equality of foreigners and Polish citizens before Polish courts as a general principle, and exceptions to it have been recently severely limited. There are no specific restrictions on the participation of foreigners in Polish class actions other than the usual requirements contained in the international rules of jurisdiction and the applicable law.

Many aspects of the Class Actions Act were already heavily criticized by scholars and legal practitioners. These criticism referred to the narrow scope of the Act (especially the exclusion of employment law claims or exclusion of claims for the protection of personal interests which effectively means no personal injury claims - see Case Law), limitation of the scope of persons who can be class representatives to class members and consumer ombudsmen only, and the lack of specific procedural mechanisms and tools for courts to facilitate smooth progress of the procedure. However, no reform proposals have appeared as of now.

1. For a more detailed analysis of reforms in Polish civil procedure: see M. Tulibacka "The Ethos of the Woolf Reforms in the Transformations of Post-socialist Civil Procedures: Case Study of Poland", in D. Dwyer (ed.) "The Civil Procedure Rules. Ten Years On", Oxford: OUP, 2009, pp. 395 - 415; and on changes in civil law and consumer law see: M. Tulibacka "Product Liability Law in Transition: A Central European Perspective", Ashgate Publishing, 2009.

2. Kodeks Postępowania Cywilnego, 17 November 1964, published in Dziennik Ustaw (Journal of Laws) of 1964, No. 43, item 296. Amended version published on the website of the Polish Parliament: http://isap.sejm.gov.pl/DetailsServlet?id=WDU19640430296.

3. For a description of this concept and how it works in a collective setting see: M. Sengayen "Poland - legal system in transition", National Report for the Global Class Actions Conference at the Centre for Socio-Legal Studies, Oxford University, December 2007, at pp. 29, 30; available at the Stanford Law School Class Actions Exchange website: http://globalclassactions.stanford.edu/sites/default/files/documents/Poland_National_Report.pdf.

4. The Injunctions Directive was implemented by the Act of 15 December 2000 on the protection of competition and consumers, later replaced by the Act of 16 February 2007, published in Dziennik Ustaw (Journal of Laws) of 2007, No. 50, ítem 331. This Act was later amended: text (tekst ujednolicony) published on the website of the Polish Parliament: http://isap.sejm.gov.pl/DetailsServlet?id=WDU20070500331.

5. (Ustawa o dochodzeniu roszczeń w postępowaniu grupowym), published in Dziennik Ustaw (Journal of Laws) of 2010, no 7; item. 44 p. 1. Hereafter called 'the Act'.

6. Article 4.2 of the Act. Further provisions quoted below are those of the same Act, unless stated otherwise.

7. Article 2.1. The concept of personal interests is not defined in Polish law, but the Civil Code provides a list of examples, such as health, good name or reputation (which is not exhaustive). This latter exclusion means, in the jurisprudence of Polish courts to-date, that personal injury cases cannot be processed using the class action mechanism.

8. Article 1.1.

9. Article 2.1 and 2.2.

10. Article 2.3. Such individual claims are of course no longer to be subject to the Class Actions Act but to the general Code of Civil Procedure Rules.

11. On the legal aid system in Poland and its reforms see: M. Tulibacka "Poland" in C. Hodges, S. Vogenauer and M. Tulibacka (eds.) "The Costs and Funding of Civil Litigation. A Comparative Perspective", Oxford: CH Beck; Hart, pp. 453 - 466, at pp. 457 - 459.

12. Not lower than 30 PLN and not higher than 100.000 PLN.

13. Article 8.

14. Paragraph 50.3 of the Barristers' Code of Ethics (http://www.monitorprawniczy.pl/index.php?mod=m_artykuly&cid=53&id=219&p=4 - accessed on 10th December 2012), and Paragraph 29.3 of the Solicitors' Code of Ethics (http://antykorupcja.edu.pl/index.php?mnu=12&app=docs&action=get&iid=9739 - accessed on 10th December 2012) prohibit lawyers from charging success fees unless they are an addition to regular hourly or per-task fees.

15. The last point was confirmed by a Supreme Court judgement, the first Supreme Court decision concerning the Class Actions Act. The Supreme Court confirmed that the Act requires legal representation of all class representatives, except for cases where they themselves are lawyers (and consumer ombudsmen are not necessarily lawyers) - uchwała SN z dnia 13 lipca 2011 r., sygn. akt III CZP 28/11.

16. Article 24.1 of the Class Actions Act refers to the Code in any aspect not regulated by the Act.

17. The 'loser pays' principle is regulated by Articles 98 and 108 of the Code of Civil Procedure of 1964. On the features and implications of the 'loser pays' principle in Poland see M. Tulibacka "Poland" in C. Hodges, S. Vogenauer and M. Tulibacka (eds.) "The Costs and Funding of Civil Litigation. A Comparative Perspective", Oxford: CH Beck; Hart, pp. 453 - 466, at p. 466. On the tariff system and the details, see ibid., at p. 464.

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